Working: H-4 Spouses Get To Take A Step Forward, But Is It A Giant One?

Sometimes it takes a
while for a sound idea to gain acceptance.
Granting employment authorization to H-4 spouses is a good example. In late March 2010, the authors urged In The
Tyranny of Priority Dates that this be done, with or without
an employment authorization document (EAD). A few months later, then USCIS General Counsel Roxanna Bacon, Service
Center Operations Head Donald Neufeld and Field Operations Chief Debra Rogers
recommended precisely this same step to USCIS Director Alejandro Mayorkas, but
only for those”H-4 dependent spouses of H-1B principals where the principals
are also applicants for lawful permanent residence under AC 21.” Memorandum, Administrative Alternatives to
Comprehensive Immigration Reform (posted as AILA InfoNet Doc. 10073063 on July
30, 2010). The memo was leaked by those who wanted to defeat any
administrative initiatives and they did so.
There matters stood until a few days ago on January 31, 2012 when the
Department of Homeland Security brought
this idea back to life. The announcement includes other
goodies too, but this is what it specifically says about the possibility for an
H-4 spouse to work:

Provide
work authorization for spouses of certain H-1B holders.

This proposed change to the current DHS regulation would
allow certain spouses of H-1B visa holders to legally work while their visa
holder spouse waits for his or her adjustment of status application to be
adjudicated. Specifically, employment will be authorized for H-4 dependent
spouses of principal H-1B visa holders who have begun the process of seeking
lawful permanent resident status through employment after meeting a minimum
period of H-1B status in the U.S. This effort will help retain talented
professionals who are valued by U.S. employers and who seek to contribute to
our economy.

Those who dig a bit
deeper on the

government’s
regulatory agenda site find a key qualifier that severely
limits the benefit granted. Some H-4 spouses it seems are more deserving of the
right to work than others: employment authorization is to be extended only to
those “H-4 spouses of principal H-1B nonimmigrants who have begun the process
of seeking lawful permanent resident status through employment and have
extended their authorized period of admission or “stay” in the U.S. under
section 104(c) or 106(a) of Public Law 106-313 also known as the American
Competitiveness in the 21st Century Act.” This means that no H-4 spouse whose H-1B
principal has not spent more than 6 years in the USA will be eligible to apply
for an EAD. At a minimum, a PERM labor
certification or I-140 would have to have been filed, and even approved to
qualify for the 3 year H extension under Section 104(c) of AC 21, if less than
365 days had elapsed since submission.
After all this, while it seems as if we should celebrate, how loud
should the cheering be?

There is no need for
the USCIS to adopt such an exceedingly narrow interpretation. After all, if we
look at the essentially unlimited authority granted by INA 274A(h)(3)(B), it
seems clear that the USCIS can grant employment authorization to anyone at any
time for any purpose. As our insightful colleague David Isaacson has cogently
pointed out, under these circumstances, an EAD can be issued to someone who is
not attached to either a PERM or an approved I-140. Indeed, an H-4 spouse whose H-1B principal is the
beneficiary of an approved family-based third preference I-130 benefits not at
all since such approval would not
sustain a 7th H year under AC 21. Save for National Interest Waivers
and Persons of Extraordinary Ability, which do not need a job offer, the right
of an H-4 spouse to work is conditioned upon the willingness of the H-1B
principal’s employer to sponsor his/her mate for LPR status, something over
which the H-4 spouse has no control.

There is nothing in the
INA that prevents an H-4 spouse from working. This prohibition is purely an act
of regulation. That being the case, what
prevents the USCIS from taking a more generous view? We would do well to
remember that the unavailability of an EAD outside the adjustment of status
context forces people into the H-1B category who might not otherwise need or
even want to be there. Allowing all H-4
spouses to work would ease the pressure on the H-1B category and, by so doing,
serve to diminish opposition to all employment-based immigration. While it is
true that the H-1B is subject to an annual limitation each year, most other
nonimmigrant work visas do not have an annual cap. Beyond that, America suffers
when the nation forgets that many talented H-1B beneficiaries choose not to
stay here because their H-4 spouses are unable to work. See
Matt Richtel , Tech Recruiting Clashes with Immigration Rules,

Truth be told, there is
no need for any H-4 spouse to apply for an EAD.
Why not simply include H-4 spouses as part of 8 CFR Section 274a.12(a)
so that they could work incident to
status? This is a simple yet elegant way
to ameliorate the extreme economic hardship that our system needlessly inflicts
upon H-4 spouses. In fact , why limit
this to H- 4 spouses? There is nothing to prevent the Executive from granting
work authorization to teenage children on H-4 visa status.

There is no reason why
an H-4 spouse should have to wait for years before being allowed to work. Since both the H and L categories are clothed
with dual intent - both visa categories allow the holder to apply for a green
card from the very outset - the H-4 spouse should be treated exactly like the
L-2 spouse when it comes to applying for an EAD. Indeed, the H-4 spouse may be
more deserving of a work permit if the wait for the green card under the
employment based second and third preferences can take several years, or even
decades, especially if the spouses are born in India or China. In fact, despite
a cap on H1B visas compared to unlimited L migration, AC21 makes it possible,
and certainly more frequent, for the H4 spouse to remain in the USA far longer
than the L-2 counterpart, thus making the need for employment authorization
more not less compelling.If the USCIS wants to
limit the scope of this benefit, allow it to be conditioned upon the filing of
a non-frivolous labor certification, or I-140 if no labor certification is
required, regardless of how long the H-1B has been in the United States. This
would advance the national interest by enhancing the incentive for H-1Bs to
come to the United States and remain here, despite chronic visa backlogs.

Ours is a policy of
audacious incrementalism designed to maximize the remedial possibilities within
the INA as it now exists while waiting for something better, namely
congressional enactment of comprehensive immigration reform. Not only is it
fitting and proper for the USCIS to formulate immigration policy on highly
minute technical issues of surpassing importance, it is no exaggeration to
contend that the Constitution expects this to happen. Indeed, without this, who
would do it? Far from crossing the line and infringing upon the authority of
Congress, what we ask the USCIS to do augments Congressional prerogatives by
providing a practical way forward. For
those who say that we ask too much too
soon, we respond with one simple question,
the same one that Hillel the Sage asks in Ethics
of the Fathers: “ If not now, when?

(The views expressed by guest author, Gary Endelman, are his and not of his firm, FosterQuan LLP)

About The Author

Gary Endelman is a Senior Counsel at Foster Quan, Houston, TX. His practice includes I-9
compliance and audits, E-Verify compliance,
immigration issues related to mergers and
acquisitions, employment-based nonimmigrant visas,
B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and
transmission of U.S. citizenship. Mr. Endelman
graduated with a B.A. in History from the University
of Virginia, a Ph.D. in United States History from the
University of Delaware, and a J.D. from the
University of Houston. From 1985 to 1995, he worked
at one of the largest immigration firms in the country.
From 1995 to 2011, he worked as the in-house
immigration counsel for BP America Inc., a
multinational energy company ranked as one of the
top 5 largest companies in the world. Mr. Endelman is
board certified in Immigration and Nationality Law by
the State Bar of Texas, Board of Legal Specialization.
He is a frequent national speaker and writer on
immigration related topics including several columns
and blogs on immigration law. He served as a senior
editor of the national conference handbook published
by AILA for ten years. In July 2005, Mr. Endelman
testified before the United States Senate Judiciary
Committee on comprehensive immigration reform.
Please contact Gary Endelman at
gendelman@fosterquan.com. The views expressed by
Mr. Endelman in this article are his personally and not
those of Foster Quan.

Cyrus D.Mehta, a graduate of Cambridge
University and Columbia Law School, is the
Managing Member of Cyrus D. Mehta & Associates,
PLLC in New York City, www.cyrusmehta.com, and
a member of the Alliance of Business Immigration
Lawyers (ABIL). He is listed as a most highly
regarded individual by International Who’s Who of
Corporate Immigration Lawyers 2011 and is ranked
by Chambers USA 2011. Mr. Mehta is the Vice Chair
of the American Immigration Lawyers Association’s
(AILA) Ethics Committee and past Chair of AILA’s
Pro Bono Committee. He is a former Chair of the
Board of Trustees of the American Immigration
Council (2004–06). He was also Secretary (2003–07)
and Chair of the Committee on Immigration and
Nationality Law (2000–03) of the New York City Bar.
He is a frequent speaker and writer on various
immigration-related issues, and is also an adjunct
associate professor of Law at Brooklyn Law School,
where he teaches a course entitled “Immigration and
Work.” He received the AILA 2011 Michael Maggio
Memorial Award for his outstanding efforts in
providing pro bono representation in the immigration
field.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.